Date of Order: 13 December 2016 Date of Publication of Reasons: 1 March 2017
S247/2016
ORDER
1.The appeal be dismissed.
2.The appellant pay the second respondent's costs of this appeal.
On appeal from the Family Court of Australia
Representation
B W Walker SC with R M Schonell SC and S J Williams for the appellant (instructed by Karras Partners Lawyers)
Submitting appearance for the first respondent
D F Jackson QC with S M Christie for the second respondent (instructed by Legal Aid NSW)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Bondelmonte v Bondelmonte
Family law – Family Law Act 1975 (Cth) – Parenting orders – Where children taken overseas by father – Where children stayed with father overseas in breach of parenting orders – Where mother applied for order for return of children – Where children expressed preference to stay with father overseas – Where primary judge made interim orders for return of children to Australia and for living arrangements upon return – Whether erroneous to discount weight given to views expressed by children – Whether father's breach of parenting orders relevant to children's best interests – Whether necessary to ascertain children's views as to living arrangements – Whether parenting orders could be made in favour of strangers to proceedings.
Words and phrases – "best interests of the child", "judicial discretion", "parenting orders", "views expressed by the child".
Family Law Act1975 (Cth), ss 60CA, 60CC, 60CD, 60CE, 64C, 65C, 65D, 68L, 68LA.
KIEFEL, BELL, KEANE, NETTLE AND GORDON JJ. The appellant and first respondent in this appeal are respectively the father and mother of three children. The second respondent is the Independent Children's Lawyer ("the ICL") who was appointed by the Federal Circuit Court of Australia to represent the three children in proceedings in the Family Court of Australia with respect to parenting orders. On the hearing of this appeal, the mother did not participate in the proceedings. Submissions in response to those of the father were made by the ICL.
This appeal concerns orders made for the return of the two eldest children to Australia from New York, where they remained after the conclusion of a holiday with the father, in breach of a parenting order which had been made by the Family Court of Australia; and it concerns interim orders made for the living arrangements of these children on their return to Australia.
At the conclusion of the hearing of this appeal the Court made orders dismissing the appeal, with costs. These are our reasons for making those orders.
Background
The two eldest children are boys who were aged nearly 17 and nearly 15 at the time the interim orders in question were made by Watts J, on 8 March 2016. The third child is…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Bondelmonte v Bondelmonte [2017] HCA 8
Case
[2017] HCA 8
Decision Date
CaseChat Overview and Summary
The appeal concerned parenting orders made by the Family Court of Australia concerning three children, two boys and a daughter, whose parents had separated. The father had taken the two boys to New York in breach of existing parenting orders, and subsequently informed the mother that they would remain there indefinitely. The mother applied for orders for the children's return to Australia. The primary judge made interim orders for the children's return and for their living arrangements upon their return, despite the boys having expressed a preference to remain with their father in New York.
The High Court was required to determine whether the primary judge erred in discounting the weight given to the views expressed by the children, whether the father's breach of parenting orders was relevant to the children's best interests, and whether it was necessary to ascertain the children's views as to their living arrangements. The Court also considered whether parenting orders could be made in favour of strangers to the proceedings, although this issue was not central to the final outcome.
The High Court reasoned that the primary judge was entitled to consider the circumstances in which the children's views were expressed, particularly the father's actions in taking the children overseas and his influence over them. The Court affirmed that the father's breach of parenting orders was a relevant consideration when assessing the children's best interests. The Court also noted that the objects of Part VII of the *Family Law Act 1975* (Cth) include ensuring that parents fulfil their responsibilities for the care, welfare, and development of their children, and that children have the right to know and be cared for by both parents. The primary judge's decision to discount the weight of the boys' expressed views, given the father's conduct, was therefore upheld.
The appeal was dismissed, and the appellant was ordered to pay the second respondent's costs of the appeal.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the second respondent's costs of this appeal.
Background
Background to the litigation
At the conclusion of the hearing of this appeal the Court made orders dismissing the appeal, with costs. These are our reasons for making those orders.Background The two eldest children are boys who were aged nearly 17 and nearly 15 at the time the interim orders in question were made by Watts J, on 8 March 2016. The third child is a daughter who was nearly 12 years of age at that time. The mother and father of the children separated in 2010. Parenting orders, made with the agreement of the mother and father on 25 June 2014 ("the 2014 parenting orders"), provided that they were to have equal shared parental responsibility for their children. It was further ordered:"2.That the children live with the husband and the wife as agreed between the parties or at the children's own election.3.That pursuant to section 65Y(2)(b) of the Family Law Act1975 the parties shall be permitted to take the children out of the Commonwealth of Australia for the purposes of a holiday provided that the parent travelling overseas with the children provides to the other parent not less than 14 days prior to their departure the following documents and information …" It was common ground in the Full Court of the Family Court that order 2 did not permit a child to decide, independently of his or her parents, whether or not the child would live in Australia or abroad. After the 2014 parenting orders were made the ICL was appointed. On 2 November 2015, orders were also made for the parents and the children to participate in a Child Responsive Program and the parents were ordered to attend an interview with a family consultant in January 2016 ("the 2015 orders"). As a result of the actions of the father in January 2016, that process was not completed and the boys were not interviewed. The family consultant was not therefore in a position to report to the Family Court as to their views. In January 2016, despite the father not providing the period of notice required by order 3 of the 2014 parenting orders, and under some pressure from him, the mother reluctantly agreed to allow the two boys to travel to New York for a holiday with the father. The girl was not included in the holiday. The boys were flown by the father, business and first class, to New York on 14 January 2016. By 25 January 2016 the father had decided that it would be in his financial interests to remain in the United States rather than to return to Australia. On 29 January 2016 his solicitor informed the mother's solicitor that the father had decided to live indefinitely in the United States and that the boys would remain with him. The mother filed an application to secure the return of the boys, in addition to proceedings brought in the United States under the Hague Convention[1] (which did not apply to the elder boy because of his age). The father did not seek any changes to the 2014 parenting orders and sought only to resist the mother's application.[1]The Hague Convention on the Civil Aspects of International Child Abduction (1980).
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL, BELL, KEANE, NETTLE AND GORDON JJ
It is a stated principle underlying the objects of Pt VII that children have the right to know and to be cared for by both parents and a right to spend time with both parents on a regular basis (s 60B(2)(a) and (b)). The objects of the Part are to ensure the best interests of children are met by reference to certain criteria, which include ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children (s 60B(1)(d)).The decision of the primary judge In determining whether to order that the boys be returned to Australia, the primary judge accepted[3] the evidence of the father as to the views which had been expressed by the boys, that they wished to continue to live with him in New York. His Honour also had regard to[4] evidence of text messages from the younger boy to his mother, to the same effect. His Honour inferred[5] from them that "even if the father did not have a direct hand in the authorship of them, there have been extensive conversations between he and [the son] about the father's desire that he be able to relocate with the boys to America". His Honour considered[6] that the actions of the father "have significantly prejudiced and almost certainly coloured any statements the boys may make whilst they are in New York".[3]Bondelmonte v Bondelmonte [2016] FamCA 138 at [32].[4]Bondelmonte v Bondelmonte [2016] FamCA 138 at [22].[5]Bondelmonte v Bondelmonte [2016] FamCA 138 at [24].[6]Bondelmonte v Bondelmonte [2016] FamCA 138 at [31]. Senior counsel for the father suggested to his Honour that a "wishes report" be obtained from an expert in the United States in relation to the current views of the boys. His Honour doubted the utility of any report as to the boys' views whilst they were living under the influence of the father in New York[7]. His Honour said[8] he would not expect the boys' views to be any different if expressed to a report writer in New York, but that "[t]he weight that I place upon those expressed views are weakened by the circumstances which have been contrived by the father".[7]Bondelmonte v Bondelmonte [2016] FamCA 138 at [27]-[29].[8]Bondelmonte v Bondelmonte [2016] FamCA 138 at [32]. His Honour also had regard to[9] the evidence from the mother that the daughter had become increasingly upset and was repeatedly asking "[w]hen are the boys coming back?". He observed[10] that, in his text messages, the younger boy appeared to have "dismissed the roots that he had in Australia and his friends at school and other connections that he has left behind in a quite blasé manner. He does not mention his sister's relationship with him."[9]Bondelmonte v Bondelmonte [2016] FamCA 138 at [26].[10]Bondelmonte v Bondelmonte [2016] FamCA 138 at [30]. In considering the best interests of the children, his Honour said[11] that not only are the boys' expressed views to be taken into account, but account must be taken of the "relationships that each of the children have with each of their parents and with each other". His Honour considered[12] that a family report, prepared in Australia, would look not just at the boys' views but at the dynamics of those relationships and in particular the future of the relationship between the daughter and her father and the younger son and his mother. His Honour expressed[13] the view that the father had "significantly jeopardised both of those relationships because of what he has done".[11]Bondelmonte v Bondelmonte [2016] FamCA 138 at [33].[12]Bondelmonte v Bondelmonte [2016] FamCA 138 at [34].[13]Bondelmonte v Bondelmonte [2016] FamCA 138 at [34].
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL, BELL, KEANE, NETTLE AND GORDON JJ